A mundane contractual provision met with rampant corruption — revealing a serious vulnerability in one of the backbones of international commerce.
Most of these arbitration cases wouldn’t generate headlines even if the doors were flung open. Many are just a couple of businesses fighting over money. Then there’s a subset of cases in which a business, or a single investor, can bring a claim against a sovereign state — many of these manage to be equally unremarkable. In 2012, a Swedish nuclear-power company took Germany to arbitration for phasing out its nuclear program ahead of schedule — the German government was spooked by the Fukushima disaster — and received more than one billion euros in the settlement.
Lawyers who practice in the area see it as a way to keep global commerce flowing smoothly. “If you didn’t have this system, you’d have what there used to be, which was gunboat diplomacy,” Gary Born, an international arbitration lawyer based in London, told me. “A foreign ministry, or somebody’s military, would take up cudgels on behalf of the local investor against the host state.” A country that doesn’t pay its arbitration bills can wind up blackballed by foreign investors. “Rather than hopelessly resist,” Born told me, “the overwhelming majority of parties voluntarily comply.”
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